Bonum Certa Men Certa

The Evil, Truly 'Evil' Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

"They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities)."Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls' proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.


We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We'll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. €§ 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.


Proponents of patent maximalism, typically a bunch of law firms, aren't happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: "the decisional mechanism courts now apply is to examine earlier cases... and which way they were decided" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned


No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36... citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…


He says that "PTAB continues bastardizing [Section] 101 caselaw", but he actually means applying, not "bastardizing":

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on "controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition" e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated


And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as "abstract idea" e-foia.uspto.gov/Foia/RetrieveP…


Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on "fact checking" technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …


Then the obligatory IBM example (Section 101 invalidation):

IBM Can't Win at the PTAB; The PTAB Reversed the Examiner's 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …


Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

"It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them."What's not to like?

Well, when one does litigation for a living (and let's face it, that's what the above people do) this whole "PTAB thing" is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them.

Recent Techrights' Posts

An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part I - A Matter of National Security
Those people are Americans who try to advance the interests of American corporations by weaponising courts abroad
 
Microsofters' SLAPP Censorship - Part 6 Out of 200: Intentionally Misnaming Women, People Who Offered to Testify That They Too Had Been Subjected to Similar Abuse
Today it is International Women's Day
Even Fedora Leadership Cannot Figure Out the Microsoft Kill Switch/Back Door, 'Secure' Boot
It does not actually enhance security
Bruce Perens: Richard Stallman "Has Achieved His Goal"
Stallman's next talk is tomorrow
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 07, 2026
IRC logs for Saturday, March 07, 2026
Gemini Links 07/03/2026: Buying Woodland, Indra 1.3.0 Available, and LLM Exhaustion
Links for the day
The Harder They Attempt to Take Down This Site (and Take Away Liberties), the More People Will See This Site
We'll carry on as usual, as from sunlight comes justice
Why They Always Try to Shoot the Messenger (When the Message Harms Profits)
A matter of economics
Coinbase - Like Block - is in Huge Trouble, Its Debt Nearly Doubled in Half a Year
The real reason Block is collapsing is its debt
Starting Another New Series This Evening, It's About American Folly
today commences a series long in the making (years)
Nations Stand to Benefit From Gender Equality and Increased Participation by Women
International Women's Rights Day starts in about 6 hours in the UK
Microsoft is Losing It, Now It's Censoring Its Critics and Sceptics
Whether the measurements made by statCounter are accurate or not, the trends (long-term) typically make sense
WIRED (Conde Nast) Reviews Are Paid-for Marketing Spam, They Change Dates on Old 'Articles' to Make Them Look Relevant and New
The Web is fast becoming a burial ground for ads, trash, spam, and slop
Gemini Links 07/03/2026: Humour, Chilling, and Oversized 'Phones'
Links for the day
Cyber|Show by Andy and Helen Recommended by Techrights and Tux Machines
If your time is limited and you look for informative essays and shows (audio)
Links 07/03/2026: CJEU to Finally Examine Behaviour of the Illegal and Unconstitutional Unified Patent Kangaroo Court, Creative Commons (CC) Hosts Open Heritage Statement Event in Amsterdam
Links for the day
Microsoft's Thailand Problem
It's definitely not Windows
New Lows for Microsoft in Micronesia
GNU/Linux has shown some growth there too
Microsofters' SLAPP Censorship - Part 5 Out of 200: Clearly Not a Security Professional/Expert, Only Ever Pretending to be One
"The Claimant says he is “a computer security expert”, but his background and his track record in the education sense (genetics) does not support this assertion."
Links 07/03/2026: Fuel Already Running Low and "Economic Crisis of the Iran War"
Links for the day
The Corporate Media Repeated the Lies Told by Jack Dorsey ("AI" Hype), Now It Does the Same for Larry Ellison
Disregard the hundreds of headlines that say mass layoffs at Oracle are due to "AI" something
The Free Software Community is Gaining Momentum as Its Importance is More Broadly Realised
As long as "trendy" technology goes in a negative direction there will be a growing portion in society looking for alternatives
Spooking or Chasing Away Women (From Computer Science)
The status quo discourages women from even trying to study Computer Science and related disciplines
"IBM Has Changed So Much in the Last Decade to the Point It's Completely Unrecognizable."
IBM is a dying, rotting company with a morbid culture
The Register MS, Sponsored by Communist Party of China (CPC)
What will happen when the bubble crashes the economy?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 06, 2026
IRC logs for Friday, March 06, 2026
Gemini Links 07/03/2026: Coffee Problem, Marchintosh, Learning, and "Selectively Disabling HTTP"
Links for the day
Under IBM, Some Fedora Blog Posts Have Become LLM Slop! (Red Hat is Doomed by Slop Fanaticism)
Who would even bother reading such trash?
Lots of People Leaving IBM Today
IBM cannot be trusted
Dances With Wolves, Wakes Up With Fleas
Small minds say "td;dr" whereas the rest say, "give me information, give me time to study it"...
LLM Slop Rare and Scarce This Friday
We still hope that by the end of this year slop will become nearly extinct
Defending British Democracy From American Predators
We stand united and strong in the face of predators
Links 06/03/2026: LLM Prompt-injection Vulnerability in Microsoft's Proprietary GitHub, "260,000 Federal Jobs Lost"
Links for the day
It's Friday and Many People Publicly Announce Leaving IBM (Which is Engineering 'Willful' Departures to Mask RAs' Scale)
We understand from whistleblowers that IBM already destroyed Red Hat's culture
Dr. Richard Stallman (RMS), the Man Whose Mind Scares GAFAM et al, Began Speaking in Switzerland
His ideas and ideals are not obscene
Gemini Links 06/03/2026: "Setting up the Feed" and Using Molly Brown
Links for the day
Links 06/03/2026: Can't Copyright Slop in US, Microsoft Became Slop Provider for Militarism
Links for the day
Garrett Does Not Just Try to Cover Up for Himself, He's Clearly Covering Up for His Mates From Microsoft (and Admits Third Parties Fund His Litigation, With Their Legal Bills Estimates Already Approaching $1,000,000)
They have already sent us about 75 KG of legal papers. How is any judge supposed to keep up?
Richard Stallman in the United States - Part IV - Back to Switzerland
The "cancel mob" tried to "finish off" RMS 5 years ago
Dr. Richard Stallman in Ada Lovelace Lecture Series 20 Hours From Now in Lucerne School of Computer Science and Information Technology (Rotkreuz)
Well-connected and affluent corporations want everything to be controlled by them, ranging from culture to words and news
Threats Issued to Daniel Pocock Having Launched the JuristGate Web Site Which Covers Financial Fraud in "Legal Insurance" Clothing
Is our world governed by laws or by rich corporations (or nations/superpowers) with well-connected lawyers/politicians?
International Women's Day: At the EPO, for Women to Become Managers They Need to Sleep With Well-connected Men and Mingle With Corrupt Men
Sunday is International Women's Day
Dr. Richard Stallman Starts His Talks in Switzerland in 8 Hours
They try to assess how many people plan to attend to ensure everyone gets a seat (without compromising the privacy/identity of those attending)
IBM Red Hat Layoffs: It's Not About "AI"
"Automation" is not "AI", it's just a generic term which can describe jobs left for machines to do, sometimes computers
Microsoft Windows Used to be Identified on Over 99% of Web Requests From Benin. Now It's Around 50%.
Or a lot less
Microsoft 'Open' 'AI' Has Severe Financial Problems, Version Inflation ("GPT-5.4") is Mindless Hype and a Misleading Distraction
In practice, both users and sponsors of ChaffGPT are fleeing
The Techrights Static Site Generator (SSG) Turns 5 Next Year
It's still under active development in our Git servers
New XBox Boss (Sharma) Implicitly Confirmed XBox (the Console) is Now Dead
Vista 11 is now also known as "XBox"
Murder as a 'Joke' to GAFAM People (Sociopathy)
When it comes to Microsoft and Salesforce, they profit from this mentality
GNU/Linux Seen as Rising to 20% in Eritrea, But That's statCounter Identifying "Unknown" as GNU/Linux
What if statCounter managed to figure out what all those "unknowns" are?
Microsoft ‘Project Helix’ is Just a Tweet in MElon's "X"
Some "tweet" is easy, as words are cheap
Microsofters' SLAPP Censorship - Part 4 Out of 200: Rianne’s Version of Events and Narrative
today we tell Rianne's experience
EPO Staff to 'Meet' This Coming Tuesday to Plan Industrial Actions Including Upcoming Strikes
using Microsoft spyware to organise this can be an own goal because Microsoft serves the dictators, not the union that tries to topple them
Thousands of EPO Workers Rally Against EPO Management
The staff is furious to see what became of the EPC and the EPO. This is not sustainable.
In Argentina Firefox is Measured at Only 1%, Google Chrome (Proprietary) at About 90%
And it has long been that way
IBM's March 2026 Layoffs Already Happening (to Accelerate Soon in Europe and America)
We're probably seeing some of the last years of IBM and it's anything but certain that IBM can survive the coming decade
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 05, 2026
IRC logs for Thursday, March 05, 2026